Kenya: Title Deed Migration Elicits Fears of Fraud

25 February 2021

The new registration system for land in Nairobi is expected to ease transactions, but experts have urged vigilance so that fraudsters don't exploit the process to legitimise illegally acquired property.

State agencies that have acquired private land for development and paid compensation to the landowners, but to whom ownership documents are yet to be transferred, have also asked the relevant authorities to protect the public interest.

In the past, such documents that have not been surrendered have been used to defraud individuals, who end up buying the land.

In January, Lands Cabinet Secretary Farida Karoney announced the start of the migration of all parcels from repealed land registration statutes to a unitary regime under the Land Registration Act, 2012.

Officials say this migration of existing title deeds and leases listed under the Registered Titles Act (RTA) and other pre-2010 legal regimes to the Land Registration Act ( LRA, 2012) has numerous benefits.

Phase 1

The first phase has seen old Nairobi land reference numbers converted to new parcel numbers. The land registration process will be centralised under one regime in line with the Constitution. Registry Index Maps (RIMs) will replace deed plans as registration instruments.

According to the lands ministry, the new system will ensure uniformity of land ownership in Kenya and minimise fraud.

By speeding up digitisation, it will help reduce threats to property rights that include double registration of titles. Services will also be decentralised due to the migration of registers and files to respective county registries.

Another benefit is land transactions will become cheaper, explains Mr Abdulkadir Khalif, a former commissioner at the National Land Commission (NLC).

"Most parcels in urban areas are leaseholds registered using the Registration of Titles Act (RTA), and all transactions require conveyancing lawyers, which makes transacting in RTA titles an expensive, elitist process," says Mr Khalif.

The new way is expected to ease the cost of doing business by simplifying land transactions.

The Lands ministry has explained that if your title was issued under the previous legal regimes it will be cancelled and replaced with a title under the current legal regime. However, the migration is fraught with risks, partly due to the broad scope of the task under tight "legacy" clock timelines to deliver in time for President Kenyatta to make good his 2013 election pledges.

Fraud fears

In this conversion, there are fears crooks will perpetuate fraud.

Among the public agencies concerned about the blanket migration is the Kenya National Highways Authority (Kenha), which boasts a large portfolio of properties across the country and which continues to acquire more for development and expansion of roads.

However, not all properties Kenha has bought have been transferred to its name, as some sellers are yet to surrender ownership documents.

Kenha Managing Director Peter Mundinia says the agency had suffered losses in the past and expected NLC to be more vigilant during the migration of title deeds.

"Agencies like Kenha give our land acquisition plans to the NLC to process acquisition to completion and hand over to us complete ownership documents," explains Mr Mundinia.

"However, things have gone wrong in the past when ownership documents were not surrendered quickly to public agencies, as happened with Kenha land in Ruaraka, where vendors the government had paid in the 1970s retained ownership documents and resold the land to third parties, so that when Kenha wished to expand the Thika superhighway, we found part of our land had been acquired by third parties," says Mr Mundinia.

Kenha has acquired thousands of parcels of land from individuals on highways for expansion, and which the NLC had yet to merge or "melt" into a single continuous strip registered in Kenha's name.

Similar issues

Other agencies such as the Ministry of Water and the National Irrigation Board are in a similar predicament. They had bought land for dam construction and compensated land owners but the ownership documents are yet to be transferred to reflect the name of the public agencies.

"The ministry must, therefore, be wary of fraudsters who will use this conversion process to legitimise illegally acquired parcels. During the previous dispensation, fraudsters used the conversion process to steal private land by creating double titles on the same space. They used the fake titles as collateral for loans from financial institutions. It is only at the point of either construction or repossession in case of default that the double registration is discovered," explains Mr Khalif.

"You will be allowed to apply for a conversion of your title where you have used your title as security. However, you'll be required to liaise with the third party (banks, hospitals, courts etc) to facilitate the replacement process," the Lands ministry says in a brief on the process.

There are also concerns about the fate of disputed ownership of forest land like Karura and Ngong Road forests. What will happen in cases where government agencies processed titles for private ownership of land hived off these forested areas?

Some of these title deeds issued in respect of Karura and Ngong Road Forest Reserve, among others, around the country are now the subject of this migration. This has raised questions on whether the process is likely to render legitimate documents that were irregularly issued or documents subject to probity and validity questions.

The fate of mortgage companies and banks that may have loaned individuals funds using such documents as collateral is another matter.

In a written submission in response to a summons by the Senate Standing Committee on Land, Environment and Natural Resources, Environment CS Keriako Tobiko asserted that those occupying forest land will be hard put to make the case to be spared on the basis of documents in their possessions.

The committee had summoned the CS to to shed light on his threats to repossess, fence off and demolish residential property built on parts of the Ngong Road Forest Reserve last year.

"Over time, several parcels of land in the un-degazetted forest area of Ngong Road Forest Reserve were illegally and fraudulently allocated to various individuals, companies and other entities and purported titles in respect thereof issued... From the records, the original illegal beneficiaries of these allocations were 207," the CS stated in his statement to the Senate dated July 20 2020.

The CS cited a 2010 report by the Ethics and Anti-Corruption Commission (EACC, then known as the Kenya Anti Corruption Commission - KACC) that recovered a parcel of land measuring 40.47Ha (100 acres) of the Ngong Road Forest Reserve, which had purportedly been allocated to the Kenya Broadcasting Corporation (KBC), and restored it back to the Kenya Forest Service.

As for the current status of Gazetted Public Forest Land forming such forests, the CS stated: "These are held in trust for the people of Kenya, both present and future generations. They perform such critical functions and purposes including serving as water towers and catchment areas, bio- diversity reservoirs, soil and water conservation, carbon sinks, landscape stabilisation, regional climatic regulation, air quality control, habitats for wildlife, cultural and sacred sites, source of medicine, natural aesthetics."

Neither the President nor the Commissioner of Lands or any other person had powers to allocate or purport to allocate any part of the gazetted forest land, he added.

All gazetted public forests cannot be legally allocated to an individual, company or any other entity by the President or Commissioner of Lands unless such forest land had been lawfully degazetted in strict compliance with the Forest Act.

"Gazetted public forests in accordance with the Public Trust Doctrine, may only be lawfully and validly degazetted for a public purpose" Mr Tobiko wrote.

They are not available for alienation or allocation for private ownership. Any such purported allocation is illegal and unlawful, he stated before warning third party buyers and family heirs:

"The resultant purported titles are illegal, invalid and null and void ab initio (from the beginning). Further, any subsequent sale, disposal and/or transfer of any such illegal and invalid titles will not confer to the 3rd party any valid property ownership, rights, or interest recognised in law."

In response to a question as to what the official government position on the matter was, Mr Tobiko responded:

"Ngong Road Forest Reserve (except any part(s) of the forest that have been lawfully and validly degazetted for a public purpose) must and shall be reclaimed, restored, conserved and protected for the benefit of all Kenyans, both present and future generations."

Efforts to reach the CS for a comment on the forest title deeds and the planned migration were not fruitful.

Pressure to implement unmet 2013 election pledges for land reforms has ignited the flurry of initiatives to clear the backlog as President Uhuru Kenyatta's time in office draws to a close.

One of the key pledges the Jubilee campaign made in its 2013 election manifesto promises was "an answer to the land question" in response to pressure from the Coalition for Reforms and Democracy (Cord), which had said the Jubilee side could not be trusted with reforms to resolve the land question.

A task force appointed by former Lands CS Jacob Kaimenyi in 2016 recommended a forensic audit of all land transactions effected post-2010 after promulgation of the Constitution, but which was yet to happen.

"There is a legitimate case for abundance of caution and prudence, than a blanket migration without discrimination for known irregular transactions," said Land Development and Governance Institute Director Ibrahim Mwathane.

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